Sunglasses Company's Virtual Try-on Feature Violates BIPA, Lawsuit Alleges

Sunglasses maker Blue Otter collects without consent detailed and sensitive biometric identifiers and information from customers who use its virtual try-on feature, alleged a Monday privacy class action (docket 1:23-cv-1187) in U.S. District Court for Northern Illinois in Chicago. Plaintiff Lance Webb, a Chicago resident, used Blue Otter’s virtual try-on feature three or four times in June or July on his iPhone and iPad to see how sunglasses would look on his face but didn’t buy a product, said the complaint. The Blue Otter website has links to the try-on feature on each product page. Clicking on the link automatically activates users’ webcam or device camera so their real-time image appears immediately, the complaint said. Users can navigate to a menu of sunglasses and see what each one will look like on their face, and they can take snapshots of the virtual try-ons, which they can download or share to Facebook, it said. Blue Otter doesn’t have a publicly available written policy establishing a retention schedule or guidelines for permanently destroying biometric identifiers or biometric information obtained from consumers, as required by the Illinois Biometric Information Privacy Act, alleged Webb. A consumer whose biometrics are compromised “has no recourse” and is at a heightened risk of identity theft, said the complaint. The plaintiff seeks preliminary and permanent injunctive and equitable relief on behalf of the class to prevent Blue Otter from continuing to collect users' face geometry through the virtual try-on feature without written release and to develop a written policy on retention and deletion of biometric information. The class action seeks awards of $1,000 per negligent violation, $5,000 per willful or reckless violation, or actual damages, whichever is more, plus reasonable attorneys’ fees and legal costs.